General
Principles of the Civil Law of the People's Republic of China
NPC.gov.cn
(Adopted at the Fourth Session of the
Sixth National People's Congress on April 12, 1986 and promulgated by Order No.
37 of the President of the People's Republic of China on April 12, 1986)
Contents
Chapter I Basic
Principles
Chapter II
Citizen (Natural Person)
Section 1
Capacity for Civil Rights and Capacity for Civil Conduct
Section
2 Guardianship
Section
3 Declarations of Missing Persons and Death
Section4 Individual
Businesses and Leaseholding Farm Households
Section
5 Individual Partnership
Chapter III
Legal Persons
Section
1 General Stipulations
Section
2 Enterprise as Legal Person
Section 3
Official Organ, Institution and Social Organization as Legal Persons
Section
4 Economic Association
Chapter IV Civil
Juristic Acts and Agency
Section
1 Civil Juristic Acts
Section
2 Agency
Chapter V Civil
Rights
Section
1 Property Ownership and Related Property Rights
Section
2 Creditors' Rights
Section
3 Intellectual Property Rights
Section
4 Personal Rights
Chapter VI Civil
Liability
Section
1 General Stipulations
Section
2 Civil Liability for Breach of Contract
Section
3 Civil Liability for Infringement of Rights
Section
4 Methods of Bearing Civil Liability
Chapter VII
Limitation of Action
Chapter VIII
Application of Law in Civil Relations with Foreigners
Chapter IX
Supplementary Provisions
Chapter
I Basic Principles
Article 1 This
Law is formulated in accordance with the Constitution and the actual situation
in our country, drawing upon our practical experience in civil activities, for
the purpose of protecting the lawful civil rights and interests of citizens and
legal persons and correctly adjusting civil relations, so as to meet the needs
of the developing socialist modernization.
Article 2 The
Civil Law of the People's Republic of China shall adjust property relationships
and personal relationships between civil subjects with equal status, that is,
between citizens, between legal persons and between citizens and legal persons.
Article 3 Parties
to a civil activity shall have equal status.
Article 4 In
civil activities, the principles of voluntariness, fairness, making
compensation for equal value, honesty and credibility shall be observed.
Article 5 The
lawful civil rights and interests of citizens and legal persons shall be
protected by law; no organization or individual may infringe upon them.
Article 6
Civil activities must be in compliance with the law; where there are no
relevant provisions in the law, they shall be in compliance with State
policies.
Article 7 Civil
activities shall have respect for social ethics and shall not harm the public
interest, undermine State economic plans or disrupt social economic order.
Article 8 The
law of the People's Republic of China shall apply to civil activities within
the People's Republic of China, except as otherwise stipulated by law.
The
stipulations of this Law as regards citizens shall apply to foreigners and
stateless persons within the People's Republic of China, except as otherwise
stipulated by law.
Chapter
II Citizen (Natural Person)
Section
1 Capacity for Civil Rights and Capacity for Civil Conduct
Article 9 A citizen shall have the capacity for civil rights from birth
to death and shall enjoy civil rights and assume civil obligations in
accordance with the law.
Article 10 All
citizens are equal as regards their capacity for civil rights.
Article 11 A citizen aged 18 or over shall be an adult. He shall have
full capacity for civil conduct, may independently engage in civil activities
and shall be called a person with full capacity for civil conduct.
A
citizen who has reached the age of 16 but not the age 18 and whose main source
of income is his own labour shall be regarded as a
person with full capacity for civil conduct.
Article 12 A
minor aged 10 or over shall be a person with limited capacity for civil conduct
and may engage in civil activities appropriate to his age and intellect; in
other civil activities, he shall be represented by his agent ad litem or participate
with the consent of his agent ad litem.
A
minor under the age of 10 shall be a person having no capacity for civil
conduct and shall be represented in civil activities by his agent ad litem.
Article 13 A
mentally ill person who is unable to account for his
own conduct shall be a person having no capacity for civil conduct and shall be
represented in civil activities by his agent ad litem.
A
mentally ill person who is unable to fully account for his own conduct shall be
a person with limited capacity for civil conduct and may engage in civil
activities appropriate to his mental health; in other civil activities, he
shall be represented by his agent ad litem or participate with the consent of
his agent ad litem.
Article 14 The
guardian of a person without or with limited capacity for civil conduct shall
be his agent ad litem.
Article 15 The
domicile of a citizen shall be the place where his residence is registered; if
his habitual residence is not the same as his domicile, his habitual residence
shall be regarded as his domicile.
Section
2 Guardianship
Article 16 The
parents of a minor shall be his guardians.
If
the parents of a minor are dead or lack the competence to be his guardian, a
person from the following categories who has the competence to be a guardian
shall act as his guardian:
(1)
paternal or maternal grandparent;
(2)
elder brother or sister; or
(3)
any other closely connected relative or friend willing to bear the
responsibility of guardianship and having approval from the units of the
minor's parents or from the neighbourhood or village
committee in the place of the minor's residence.
In
case of a dispute over guardianship, the units of the minor's parents or the neighbourhood or village committee in the place of his
residence shall appoint a guardian from among the minor's near relatives. If
disagreement over the appointment leads to a lawsuit, the people's court shall
make a ruling.
If
none of the persons listed in the first two paragraphs of this Article is
available to be the guardian, the units of the minor's parents, the neighbourhood or village committee in the place of the
minor's residence or the civil affairs department shall act as his guardian.
Article 17 A person from the following categories shall act as guardian
for a mentally ill person without or with limited capacity for civil conduct:
(1)
spouse;
(2)
parent;
(3)
adult child;
(4)
any other near relative;
(5)
any other closely connected relative or friend willing to bear the
responsibility of guardianship and having approval from the unit to which the
mentally ill person belongs or from the neighbourhood
or village committee in the place of his residence.
In
case of a dispute over guardianship, the unit to which the mentally ill person
belongs or the neighbourhood or village committee in
the place of his residence shall appoint a guardian from among his near
relatives. If disagreement over the appointment leads to a lawsuit, the
people's court shall make a ruling.
If
none of the persons listed in the first paragraph of this article is available
to be the guardian, the unit to which the mentally ill person belongs, the neighbourhood or village committee in the place of his
residence or the civil affairs department shall act as his guardian.
Article 18 A guardian shall fulfil his duty of
guardianship and protect the person, property and other lawful rights and
interests of his wards. A guardian shall not handle the property of his ward
unless it is in the ward's interests.
A
guardian's rights to fulfil his guardianship in
accordance with the law shall be protected by law.
If
a guardian does not fulfil his duties as guardian or
infringes upon the lawful rights and interests of his ward, he shall be held
responsible; if a guardian causes any property loss for his ward, he shall
compensate for such loss. The people's court may disqualify a guardian based on
the application of a concerned party or unit.
Article 19 A person who shares interests with mental patient may apply to
a people's court for a declaration that the mental patient is a person without
or with limited capacity for civil conduct.
With
the recovery of the health of a person who has been declared by a people's
court to be without or with limited capacity for civil conduct, and upon his
own application or that of an interested person, the people's court may declare
him to be a person with limited or full capacity for civil conduct.
Section
3 Declarations of Missing Persons and Death
Article 20 If a
citizen's whereabouts have been unknown for two years, an interested person may
apply to a people's court for a declaration of the citizen as missing.
If
a person's whereabouts become unknown during a war, the calculation of the time
period in which his whereabouts are unknown shall begin on the final day of the
war.
Article 21 A
missing person's property shall be placed in the custody of his spouse,
parents, adult children or other closely connected relatives or friends. In
case of a dispute over custody, if the persons stipulated above are unavailable
or are incapable of taking such custody, the property shall be placed in the
custody of a person appointed by the people's court.
Any
taxes, debts and other unpaid expenses owed by a missing person shall defrayed
by the custodian out of the missing person's property.
Article 22 In
the event that a person who has been declared missing reappears or his
whereabouts is ascertained, the people's court shall, upon his own application
or that of an interested person, revoke the declaration of his missing-person
status.
Article 23 Under
either of the following circumstances, an interested person may apply to the
people's court for a declaration of a citizen's death:
(1)
if the citizen's whereabouts have been unknown for
four years; or
(2)
if the citizen's whereabouts have been unknown for two
years after the date of an accident in which he was involved.
If
a person's whereabouts become unknown during a war, the calculation of the time
period in which his whereabouts are unknown shall begin on the final day of the
war.
Article 24 In
the event that a person who has been declared dead reappears or it is
ascertained that he is alive, the people's court shall, upon his own
application or that of an interested person, revoke the declaration of his
death.
Any
civil juristic acts performed by a person with capacity for civil conduct
during the period in which he has been declared dead shall be valid.
Article 25 A person shall have the right to request the return of his
property, if the declaration of his death has been revoked. Any citizen or
organization that has obtained such property in accordance with the Inheritance
Law shall return the original items or make appropriate compensation if the
original items are no longer existent.
Section
4 Individual Businesses and Leaseholding Farm
Households
Article 26 "Individual
businesses" refers to businesses run by individual citizens who have been
lawfully registered and approved to engage in industrial or commercial
operation within the sphere permitted by law. An individual business may adopt
a shop name.
Article 27
"Leaseholding farm households" refers to
members of a rural collective economic organization who engage in commodity
production under a contract and within the spheres permitted by law.
Article 28 The
legitimate rights and interests of individual businesses and leaseholding farm households shall be protected by law.
Article 29 The
debts of an individual business or a leaseholding
farm household shall be secured with the individual's property if the business
is operated by an individual and with the family's property if the business is
operated by a family.
Section
5 Individual Partnership
Article 30
"Individual partnership" refers to two or more citizens associated in
a business and working together, with each providing funds, material objects, techniques and so on according to an agreement.
Article 31
Partners shall make a written agreement covering the funds each is to provide,
the distribution of profits, the responsibility for debts, the entering into
and withdrawal from partnership, the ending of partnership and other such
matters.
Article 32 The
property provided by the partners shall be under their unified management and
use.
The
property accumulated in a partnership operation shall belong to all the partners.
Article 33 An
individual partnership may adopt a shop name; it shall be approved and
registered in accordance with law and conduct business operations within the
range as approved and registered.
Article 34 The
operational activities of an individual partnership shall be decided jointly by
the partners, who each shall have the right to carry out and supervise those
activities.
The
partners may elect a responsible person. All partners shall bear civil
liability for the operational activities of the responsible person and other
personnel.
Article 35 A partnership's debts shall be secured with the partners'
property in proportion to their respective contributions to the investment or
according to the agreement made.
Partners
shall undertake joint liability for their partnership's debts, except as
otherwise stipulated by law. Any partner who overpays his share of the
partnership's debts shall have the right to claim compensation from the other
partners.
Chapter
III Legal Persons
Section
1 General Stipulations
Article 36 A
legal person shall be an organization that has
capacity for civil rights and capacity for civil conduct and independently
enjoys civil rights and assumes civil obligations in accordance with the law.
A
legal person's capacity for civil rights and capacity for civil conduct shall
begin when the legal person is established and shall end when the legal person
terminates.
Article 37 A
legal person shall have the following qualifications:
(1)
establishment in accordance with the law;
(2)
possession of the necessary property or funds;
(3)
possession of its own name, organization and premises;
and
(4)
ability to independently bear civil liability.
Article 38 In
accordance with the law or the articles of association of the legal person, the
responsible person who acts on behalf of the legal person in exercising its
functions and powers shall be its legal representative.
Article 39 A
legal person's domicile shall be the place where its
main administrative office is located.
Article 40 When a
legal person terminates, it shall go into liquidation in accordance with the
law and discontinue all other activities.
Section
2 Enterprise as Legal Person
Article 41 An
enterprise owned by the whole people or under collective ownership shall be
qualified as a legal person when it has sufficient funds as stipulated by the
State; has articles of association, an organization and premises; has the
ability to independently bear civil liability; and has been approved and
registered by the competent authority.
A
Chinese-foreign equity joint venture, Chinese-foreign contractual joint venture
or foreign-capital enterprise established within the People's Republic of China
shall be qualified as a legal person in China, if it has the qualifications of
a legal person and has been approved and registered by the administrative
agency for industry and commerce in accordance with the law.
Article 42 An
enterprise as legal person shall conduct operations within the range approved
and registered.
Article 43 An
enterprise as legal person shall bear civil liability for the operational
activities of its legal representatives and other personnel.
Article 44 If an
enterprise as legal person is divided or merged or undergoes any other
important change, it shall register the change with the registration authority
and publicly announce it.
When
an enterprise as legal person is divided or merged, its rights and obligations
shall be enjoyed and assumed by the new legal person that results from the
change.
Article 45 An
enterprise as legal person shall terminate for any of the following reasons:
(1)
if it is dissolved by law;
(2)
if it is disbanded;
(3)
if it is declared bankrupt in accordance with the law;
or
(4)
for other reasons.
Article 46 When
an enterprise as legal person terminates, it shall cancel its registration with
the registration authority and publicly announce the termination.
Article 47 When
an enterprise as legal person is disbanded, it shall establish a liquidation
organization and go into liquidation. When an enterprise as legal person is
dissolved or is declared bankrupt, the competent authority or a people's court
shall organize the organs and personnel concerned to establish a liquidation
organization to liquidate the enterprise.
Article 48 An
enterprise owned by the whole people, as legal person, shall bear civil
liability with the property that the State authorizes it to manage. An
enterprise under collective ownership, as legal person, shall bear civil
liability with the property it owns. A Chinese-foreign equity joint venture,
Chinese-foreign contractual joint venture or foreign-capital enterprise as
legal person shall bear civil liability with the property it owns, except as
stipulated otherwise by law.
Article 49 Under
any of the following circumstances, an enterprise as legal person shall bear
liability, its legal representative may additionally be given administrative
sanctions and fined and, if the offence constitutes a crime, criminal
responsibility shall be investigated in accordance with the law:
(1)
conducting illegal operations beyond the range
approved and registered by the registration authority;
(2)
concealing facts from the registration and tax
authorities and practising fraud;
(3)
secretly withdrawing funds or hiding property to evade
repayment of debts;
(4)
disposing of property without authorization after the
enterprise is dissolved, disbanded or declared bankrupt;
(5)
failing to apply for registration and make a public
announcement promptly when the enterprise undergoes a change or terminates,
thus causing interested persons to suffer heavy losses;
(6)
engaging in other activities prohibited by law,
damaging the interests of the State or the public interest.
Section
3 Official Organ, Institution and Social Organization as Legal Person
Article 50 An
independently funded official organ shall be qualified as a legal person on the
day it is established.
If
according to law an institution or social organization having the
qualifications of a legal person needs not go through the procedures for
registering as a legal person, it shall be qualified as a legal person on the
day it is established; if according to law it does need to go through the
registration procedures, it shall be qualified as a legal person after being
approved and registered.
Section
4 Economic Association
Article 51 If a
new economic entity is formed by the enterprises or an enterprise and an
institution that engage in economic association and it independently bears
civil liability and has the qualifications of a legal person, the new entity
shall be qualified as a legal person after being approved and registered by the
competent authority.
Article 52 If
the enterprises or an enterprise and an institution that engage in economic
association conduct joint operation but do not have the qualifications of a
legal person, each party to the association shall, in proportion to its
respective contribution to the investment or according to the agreement made,
bear civil liability with the property each party owns or manages. If joint liability
is specified by law or by agreement, the parties shall assume joint liability.
Article 53 If
the contract for economic association of enterprises or of an enterprise and an
institution specifies that each party shall conduct operations independently,
it shall stipulate the rights and obligations of each party, and each party
shall bear civil liability separately.
Chapter
IV Civil
Juristic Acts and Agency
Section
1 Civil
Juristic Acts
Article 54 A
civil juristic act shall be the lawful act of a
citizen or legal person to establish, change or terminate civil rights and
obligations.
Article 55 A
civil juristic act shall meet the following
requirements:
(1)
the actor has relevant capacity for civil conduct;
(2)
the intention expressed is genuine; and
(3)
the act does not violate the law or the public
interest.
Article 56 A
civil juristic act may be in written, oral or other
form. If the law stipulates that a particular form be adopted, such stipulation
shall be observed.
Article 57 A
civil juristic act shall be legally binding once it is
instituted. The actor shall not alter or rescind his act except in accordance
with the law or with the other party's consent.
Article 58
Civil acts in the following categories shall be null and void:
(1)
those performed by a person without capacity for civil
conduct;
(2)
those that according to law may not be independently
performed by a person with limited capacity for civil conduct;
(3)
those performed by a person against his true
intentions as a result of cheating, coercion or exploitation of his unfavourable position by the other party;
(4)
those that performed through malicious collusion are
detrimental to the interest of the State, a collective or a third party;
(5)
those that violate the law or the public interest;
(6)
economic contracts that violate the State's mandatory
plans; and
(7)
those that performed under the guise of legitimate
acts conceal illegitimate purposes.
Civil
acts that are null and void shall not be legally binding from the very beginning.
Article 59 A party shall have the right to request a people's court or an
arbitration agency to alter or rescind the following civil acts:
(1)
those performed by an actor who seriously
misunderstood the contents of the acts; and
(2)
those that are obviously unfair.
Rescinded
civil acts shall be null and void from the very beginning.
Article 60 If a
part of a civil act is null and void, it shall not affect the validity of other
part.
Article 61 After
a civil act has been determined to be null and void or has been rescinded, the
party who acquired property as a result of the act shall return it to the party
who suffered a loss. The erring party shall compensate the other party for the
losses it suffered as a result of the act; if both sides are in error, they
shall each bear their proper share of the responsibility.
If
the two sides have conspired maliciously and performed a civil act that is
detrimental to the interests of the State, a collective or a third party, the
property that they thus obtained shall be recovered and turned over to the
State or the collective, or returned to the third party.
Article 62 A
civil juristic act may have conditions attached to it.
Conditional civil juristic acts shall take effect when the relevant conditions
are met.
Section
2 Agency
Article 63
Citizens and legal persons may perform civil juristic acts through agents
An
agent shall perform civil juristic acts in the principal's name within the
scope of the power of agency. The principal shall bear civil liability for the
agent's acts of agency.
Civil
juristic acts that should be performed by the principal himself, pursuant to
legal provisions or the agreement between the two parties, shall not be
entrusted to an agent.
Article 64
Agency shall include entrusted agency, statutory agency and appointed agency.
An
entrusted agent shall exercise the power of agency as entrusted by the
principal; a statutory agent shall exercise the power of agency as prescribed
by law; and an appointed agent shall exercise the power of agency as designated
by a people's court or the appointing unit.
Article 65 A
civil juristic act may be entrusted to an agent in writing or orally. If legal
provisions require the entrustment to be written, it shall be effected in writing.
Where
the entrustment of agency is in writing, the power of attorney shall clearly
state the agent's name, the entrusted tasks and the scope and duration of the
power of agency, and it shall be signed or sealed by the principal.
If
the power of attorney is not clear as to the authority conferred, the principal
shall bear civil liability towards the third party, and the agent shall be held
jointly liable.
Article 66 The
principal shall bear civil liability for an act performed by an actor with no
power of agency, beyond the scope of his power of agency or after his power of
agency has expired, only if he recognizes the act retroactively. If the act is
not so recognized, the performer shall bear civil liability for it. If a
principal is aware that a civil act is being executed in his name but fails to
repudiate it, his consent shall be deemed to have been given.
An
agent shall bear civil liability if he fails to perform his duties and thus
causes damage to the principal.
If
an agent and a third party in collusion harm the principal's interests, the
agent and the third party shall be held jointly liable.
If
a third party is aware that an actor has no power of agency, is overstepping
his power of agency, or his power of agency has expired and yet joins him in a
civil act and thus brings damage to other people, the third party and the actor
shall be held jointly liable.
Article 67 If an
agent is aware that the matters entrusted are illegal but still carries them
out, or if a principal is aware that his agent's acts are illegal but fails to
object to them, the principal and the agent shall be held jointly liable.
Article 68 If
in the principal's interests an entrusted agent needs to transfer the agency to
another person, he shall first obtain the principal's consent. If the principal's
consent is not obtained in advance, the matter shall be reported to him
promptly after the transfer, and if the principal objects, the agent shall bear
civil liability for the acts of the transferee; however, an entrusted agency
transferred in emergency circumstances in order to safeguard the principal's
interests shall be excepted.
Article 69 An
entrusted agency shall end under any of the following circumstances:
(1)
when the period of agency expires or when the tasks
entrusted are completed;
(2)
when the principal rescinds the entrustment or the
agent declines the entrustment;
(3)
when the agent dies;
(4)
when the principal loses his capacity for civil
conduct; or
(5)
when the principal or the agent ceases to be a legal
person.
Article 70 A statutory
or appointed agency shall end under any of the
following circumstances:
(1)
when the principal gains or recovers capacity for
civil conduct;
(2)
when the principal or the agent dies;
(3)
when the agent loses capacity for civil conduct;
(4)
when the people's court or the unit that appointed the
agent rescinds the appointment; or
(5)
when the guardian relationship between the principal
and the agent ends for other reasons.
Chapter
V Civil Rights
Section
1 Property Ownership and Related Property Rights
Article 71
"Property ownership" means the owner's rights to lawfully possess,
utilize, profit from and dispose of his property.
Article 72
Property ownership shall not be obtained in violation of the law.
Unless
the law stipulates otherwise or the parties concerned have agreed on other
arrangements, the ownership of property obtained by contract or by other lawful
means shall be transferred simultaneously with the property itself.
Article 73
State property shall be owned by the whole people.
State
property is sacred and inviolable, and no organization or individual shall be
allowed to seize, encroach upon, privately divide, retain or destroy it.
Article 74
Property of collective organizations of the working masses shall be owned
collectively by the working masses. This shall include:
(1)
land, forests, mountains, grasslands, unreclaimed land, beaches and other areas that are
stipulated by law to be under collective ownership;
(2)
property of collective economic organizations;
(3)
collectively owned buildings, reservoirs, farm
irrigation facilities and educational, scientific, cultural, health, sports and
other facilities; and
(4)
other property that is collectively owned.
Collectively
owned land shall be owned collectively by the village peasants in accordance
with the law and shall be worked and managed by village agricultural production
cooperatives, other collective agricultural economic organizations or
villagers' committees. Land already under the ownership of the township (town)
peasants' collective economic organizations may be collectively owned by the
peasants' of the township (town).
Collectively
owned property shall be protected by law, and no organization or individual may
seize, encroach upon, privately divide, destroy or illegally seal up, distrain, freeze or confiscate it.
Article 75 A
citizen's personal property shall include his lawfully earned income, housing,
savings, articles for daily use, objects of cultural relics, books, reference
materials, trees, livestock, as well as means of production the law permits a
citizen to possess and other lawful property.
A
citizen's lawful property shall be protected by law, and no organization or
individual may appropriate, encroach upon, destroy or illegally seal up, distrain, freeze or confiscate it.
Article 76 Citizens
shall have the right of inheritance under the law.
Article 77 The
lawful property of social organizations, including religious organizations,
shall be protected by law.
Article 78
Property may be owned jointly by two or more citizens or legal persons.
There
shall be two kinds of joint ownership, namely co-ownership by shares and common
ownership. Each of the co-owners by shares shall enjoy the rights and assume
the obligations respecting the joint property in proportion to his share. Each
of the common owners shall enjoy the rights and assume the obligations
respecting the joint property.
Each
co-owner by shares shall have the right to withdraw his own share of the joint
property or transfer its ownership. However, when he offers to sell his share,
the other co-owners shall have a right of pre-option if all other conditions
are equal.
Article 79 If
the owner of a buried or concealed object is unknown, the object shall belong
to the State. The unit that receives the object shall commend or give a
material reward to the unit or individual that turns in the object.
Lost-and-found
objects, flotsam and stray animals shall be returned to their rightful owners,
and any costs thus incurred shall be reimbursed by the owners.
Article 80
State-owned land may be used according to law by units under ownership by the
whole people; it may also be lawfully assigned for use by units under
collective ownership. The State shall protect the usufruct of the land, and the
usufructuary shall be obligated to manage, protect
and properly use the land.
The
right of citizens and collectives to contract for management of land under
collective ownership or of State-owned land under collective use shall be
protected by law. The rights and obligations of the two contracting parties
shall be stipulated in the contract signed in accordance with the law.
Land
may not be sold, leased, mortgaged or illegally transferred by any other means.
Article 81 State-owned
forests, mountains, grasslands, unreclaimed land,
beaches, water surfaces and other natural resources may be used according to
law by units under ownership by the whole people; or they may also be lawfully
assigned for use by units under collective ownership. The State shall protect
the usufruct of those resources, and the usufructuary
shall be obliged to manage, protect and properly use them.
State-owned
mineral resources may be mined according to law by units under ownership by the
whole people and units under collective ownership; citizens may also lawfully
mine such resources. The State shall protect lawful mining rights.
The
right of citizens and collectives to lawfully contract for the management of
forests, mountains, grasslands, unreclaimed land,
beaches and water surfaces that are owned by the collectives or owned by the
State but used by collectives shall be protected by law. The rights and
obligations of the two contracting parties shall be stipulated in the contract
in accordance with the law.
State-owned
mineral resources and waters as well as forest land, mountains, grasslands, unreclaimed land and beaches owned by the State and those
that are lawfully owned by collectives may not be sold, leased, mortgaged or
illegally transferred by any other means.
Article 82 Enterprises
under ownership by the whole people shall lawfully enjoy the rights of
management over property that the State has authorized them to manage and
operate, and the rights shall be protected by law.
Article 83 In
the spirit of helping production, making things convenient for people's life,
enhancing unity and mutual assistance, and being fair and reasonable, neighbouring users of real estate shall maintain proper neighbourly relations over such matters as water supply,
drainage, passageway, ventilation and lighting. Anyone who causes obstruction
or damages to his neighbour, shall stop the
infringement, eliminate the obstruction and compensate for the damages.
Section
2 Creditors' Rights
Article 84 A debt represents a special relationship of rights and
obligations established between the parties concerned, either according to the
agreed terms of a contract or legal provisions. The party entitled to the
rights shall be the creditor, and the party assuming the obligations shall be
the debtor.
The
creditor shall have the right to demand that the debtor fulfil
his obligations as specified by the contract or according to legal provisions.
Article 85 A contract shall be an agreement whereby the parties
establish, change or terminate their civil relationship. Lawfully established
contracts shall be protected by law.
Article 86 When there are two or more creditors to a deal, each
creditor shall be entitled to rights in proportion to his proper share of the
credit. When there are two or more debtors to a deal, each debtor shall assume
obligations in proportion to his proper share of the debt.
Article 87 When
there are two or more creditors or debtors to a deal, each of the joint
creditors shall be entitled to demand that the debtor fulfil
his obligations, in accordance with legal provisions or the agreement between
the parties; each of the joint debtors shall be obliged to perform the entire
debt, and the debtor who performs the entire debt shall be entitled to ask the
other joint debtors to reimburse him for their shares of the debt.
Article 88 The
parties to a contract shall fully fulfil their
obligations pursuant to the terms of the contract.
If
a contract contains ambiguous terms regarding quality, time limit for
performance, place of performance, or price, and the intended meaning cannot be
determined from the context of relevant terms in the contract, and if the
parties cannot reach an agreement through consultation, the provisions below
shall apply:
(1)
If quality requirements are unclear, State quality standards shall apply; if
there are no State quality standards, generally held standards shall apply.
(2)
If the time limit for performance is unclear, the debtor may at his convenience
fulfil his obligations towards the creditor; the
creditor may also demand at any time that the debtor perform his obligations,
but sufficient notice shall be given to the debtor.
(3)
If the place of performance is unclear, and the payment is money, the
performance shall be effected at the seat or place of
residence of the party receiving the payment; if the payment is other than
money, the performance shall be effected at the seat or place of residence of
the party fulfilling the obligations.
(4)
If the price agreed by the parties is unclear, the State-fixed price shall
apply. If there is no State-fixed price, the price shall be based on market
price or the price of a similar article or remuneration for a similar service.
If
the contract does not contain an agreed term regarding rights to patent
application, any party who has completed an invention-creation shall have the
right to apply for a patent.
If
the contract does not contain an agreed term regarding rights to the use of
scientific and technological research achievements, the parties shall all have
the right to use such achievements.
Article 89 In
accordance with legal provisions the agreement between the parties on the
performance of a debt may be guaranteed using the methods below:
(1)
A guarantor may guarantee to the creditor that the debtor shall perform his
debt. If the debtor defaults, the guarantor shall perform the debt or bear
joint liability according to agreement. After performing the debt, the
guarantor shall have the right to claim repayment from the debtor.
(2)
The debtor or a third party may offer a specific property as a pledge. If the
debtor defaults, the creditor shall be entitled to keep the pledge to offset
against the debt or have priority in satisfying his claim out of the proceeds
from the sale of the pledge pursuant to relevant legal provisions.
(3)
Within the limits of relevant legal provisions, a party may leave a deposit
with the other party. After the debtor has discharged his debt, the deposit
shall either be retained as partial payment of the debt or returned. If the
party who leaves the deposit defaults, he shall not be entitled to demand the
return of the deposit; if the party who accepts the deposit defaults, he shall
repay the deposit in double.
(4)
If a party has possession of the other party's property according to contract,
and the other party violates the contract by failing to pay a required sum of
money within the specified time limit, the possessor shall have a lien on the
property and may keep the retained property to offset the debt or have priority
in satisfying his claim out of the proceeds from the sale of the property
pursuant to relevant legal provisions.
Article 90
Legitimate loan relationships shall be protected by law.
Article 91 If a
party to a contract transfers all or part of his contractual rights or
obligations to a third party, he shall obtain the other party's consent and may
not seek profits therefrom. Contracts which according to legal provisions are
subject to State approval, such as transfers, must be approved by the authority
that originally approved the contract, unless the law or the original contract
stipulates otherwise.
Article 92 If
profits are acquired improperly and without a lawful basis, resulting in
another person's loss, the illegal profits shall be returned to the person who
suffered the loss.
Article 93 If a
person acts as manager or provides services in order to protect another
person's interests when he is not legally or contractually obligated to do so,
he shall be entitled to claim from the beneficiary the expenses necessary for
such assistance.
Section
3 Intellectual Property Rights
Article 94
Citizens and legal persons shall enjoy rights of authorship (copyrights) and
shall be entitled to sign their names as authors, issue and publish their works
and obtain remuneration in accordance with the law.
Article 95 The patent rights lawfully obtained by citizens and legal
persons shall be protected by law.
Article 96 The
rights to exclusive use of trademarks obtained by legal persons, individual
businesses and individual partnerships shall be protected by law.
Article 97
Citizens who make discoveries shall be entitled to the rights of discovery. A
discoverer shall have the right to apply for and receive certificates of
discovery, bonuses or other awards.
Citizens
who make inventions or other achievements in scientific and technological
researches shall have the right to apply for and receive certificates of honour, bonuses or other awards.
Section
4 Personal Rights
Article 98
Citizens shall enjoy the rights of life and health.
Article 99
Citizens shall enjoy the right of personal name and shall be entitled to
determine, use or change their personal names in accordance with relevant
provisions. Interference with, usurpation of and false representation of
personal names shall be prohibited.
Legal
persons, individual businesses and individual partnerships shall enjoy the
right of name. Enterprises as legal persons, individual businesses and
individual partnerships shall have the right to use and lawfully assign their
own names.
Article 100
Citizens shall enjoy the right of portrait.
The
use of a citizen's portrait for profits without his consent shall be
prohibited.
Article 101
Citizens and legal persons shall enjoy the right of reputation. The personality
of citizens shall be protected by law, and the use of insults, libel or other
means to damage the reputation of citizens or legal persons shall be
prohibited.
Article 102 Citizens
and legal persons shall enjoy the right of honour. It
shall prohibited to unlawfully divest citizens and
legal persons of their honorary titles.
Article 103
Citizens shall enjoy the right of marriage by choice. Mercenary marriages,
marriages upon arbitrary decision by any third party and any other acts of
interference in the freedom of marriage shall be prohibited.
Article 104 Marriage,
the family, old people, mothers and children shall be protected by law.
The
lawful rights and interests of the handicapped shall be protected by law.
Article 105 Women
shall enjoy equal civil rights with men.
Chapter
VI Civil Liability
Section
1 General Stipulations
Article 106
Citizens and legal persons who breach a contract or fail to fulfil
other obligations shall bear civil liability.
Citizens
and legal persons who through their fault encroach upon State or collective
property or the property or person of other people shall bear civil liability.
Civil
liability shall still be borne even in the absence of fault, if the law so
stipulates.
Article 107
Civil liability shall not be borne for failure to perform a contract or damage
to a third party if it is caused by force majeure, except as otherwise provided
by law.
Article 108
Debts shall be cleared. If a debtor is unable to repay his debt immediately, he
may repay by installments with the consent of the creditor or a ruling by a
people's court. If a debtor is capable of repaying his debt but refuses to do
so, repayment shall be compelled by the decision of a people's court.
Article
109
If a person suffers damages from preventing or stopping encroachment on State
or collective property, or the property or person of a third party, the
infringer shall bear responsibility for compensation, and the beneficiary may
also give appropriate compensation.
Article 110 Citizens
or legal persons who bear civil liability shall also be held for administrative
responsibility if necessary. If the acts committed by citizens and legal
persons constitute crimes, criminal responsibility of their legal
representatives shall be investigated in accordance with the law.
Section
2 Civil Liability for Breach of Contract
Article 111 If a
party fails to fulfil its contractual obligations or
violates the terms of a contract while fulfilling the obligations, the other
party shall have the right to demand fulfilment or
the taking of remedial measures and claim compensation for its losses.
Article 112 The
party that breaches a contract shall be liable for compensation equal to the
losses consequently suffered by the other party.
The
parties may specify in a contract that if one party breaches the contract it
shall pay the other party a certain amount of breach of contract damages; they
may also specify in the contract the method of assessing the compensation for
any losses resulting from a breach of contract.
Article 113 If
both parties breach the contract, each party shall bear its respective civil
liability.
Article 114 If
one party is suffering losses owing to the other party's breach of contract, it
shall take prompt measures to prevent the losses from increasing; if it does
not promptly do so, it shall not have the right to claim compensation for the
additional losses.
Article 115 A party's right to claim compensation for losses shall not be
affected by the alteration or termination of a contract.
Article 116 If a
party fails to fulfil its contractual obligations on
account of a higher authority, it shall first compensate for the losses of the
other party or take other remedial measures as contractually agreed and then
the higher authority shall be responsible for settling the losses it sustained.
Section
3 Civil Liability for Infringement of Rights
Article 117 Anyone
who encroaches on the property of the State, a collective or another person
shall return the property; failing that, he shall reimburse its estimated
price.
Anyone
who damages the property of the State, a collective or another person shall
restore the property to its original condition or reimburse its estimated
price. If the victim suffers other great losses therefrom, the infringer shall
compensate for those losses as well
Article 118 If
the rights of authorship (copyrights), patent rights, rights to exclusive use
of trademarks, rights of discovery, rights of invention or rights for
scientific and technological research achievements of citizens or legal persons
are infringed upon by such means as plagiarism, alteration or imitation, they
shall have the right to demand that the infringement be stopped, its ill
effects be eliminated and the damages be compensated for.
Article 119
Anyone who infringes upon a citizen's person and causes him physical injury
shall pay his medical expenses and his loss in income due to missed working
time and shall pay him living subsidies if he is disabled; if the victim dies,
the infringer shall also pay the funeral expenses, the necessary living
expenses of the deceased's dependents and other such expenses.
Article 120 If a
citizen's right of personal name, portrait, reputation or honour
is infringed upon, he shall have the right to demand that the infringement be
stopped, his reputation be rehabilitated, the ill effects be eliminated and an
apology be made; he may also demand compensation for losses.
The
above paragraph shall also apply to infringements upon a legal person's right
of name, reputation or honour.
Article 121 If a
State organ or its personnel, while executing its duties, encroaches upon the
lawful rights and interests of a citizen or legal person and causes damages, it
shall bear civil liability.
Article 122 If a
substandard product causes property damage or physical injury to others, the
manufacturer or seller shall bear civil liability according
to law. If the transporter or storekeeper is responsible for the matter, the
manufacturer or seller shall have the right to demand compensation for its
losses.
Article 123 If
any person causes damage to other people by engaging in operations that are
greatly hazardous to the surroundings, such as operations conducted high
aboveground, or those involving high pressure, high voltage, combustibles,
explosives, highly toxic or radioactive substances or high-speed means of transport,
he shall bear civil liability; however, if it can be proven that the damage was
deliberately caused by the victim, he shall not bear civil liability.
Article 124 Any
person who pollutes the environment and causes damages to others in violation
of State provisions for environmental protection and the prevention of
pollution shall bear civil liability in accordance with the law.
Article 125 Any
constructor who engages in excavation, repairs or installation of underground
facilities in a public place, on a roadside or in a passageway without setting
up clear signs and adopting safety measures and thereby causes damages to
others shall bear civil liability.
Article 126 If a
building or any other installation or an object placed or hung on a structure
collapses, detaches or drops down and causes damages to others, its owner or
manager shall bear civil liability, unless he can prove himself not a fault.
Article 127 If a
domesticated animal causes harm to any person, its
keeper or manager shall bear civil liability. If the harm occurs through the
fault of the victim, the keeper or manager shall not bear civil liability; if
the harm occurs through the fault of a third party, the third party shall bear
civil liability.
Article 128 A person who causes harm in exercising justifiable defence shall not bear civil liability. If justifiable defence exceeds the limits of necessity and undue harm is
caused, an appropriate amount of civil liability shall be borne.
Article 129 If
harm occurs through emergency actions taken to avoid danger, the person who
gave rise to the danger shall bear civil liability. If the danger arose from
natural causes, the person who took the emergency actions may either be exempt
from civil liability or bear civil liability to an appropriate extent. If the
emergency measures taken are improper or exceed the limits of necessity and
undue harm is caused, the person who took the emergency action shall bear civil
liability to an appropriate extent.
Article 130 If
two or more persons jointly infringe upon another person's rights and cause him damages, they shall bear joint liability.
Article 131 If a
victim is also at fault for causing the damage, the civil liability of the
infringer may be reduced.
Article 132 If
none of the parties are at fault in causing damage, they may share civil
liability according to the actual circumstances.
Article 133 If a
person without or with limited capacity for civil conduct causes damages to others, his guardian shall bear civil liability. If the
guardian has done his duty of guardianship, his civil liability may be
appropriately reduced.
If
a person who has property but is without or with limited capacity for civil
conduct causes damages to others, the expenses of compensation shall be paid
from his property. Shortfalls in such expenses shall be appropriately
compensated for by the guardian unless the guardian is a unit.
Section
4 Methods
of Bearing Civil Liability
Article 134 The
main methods of bearing civil liability shall be:
(1)
cessation of infringements;
(2)
removal of obstacles;
(3)
elimination of dangers;
(4)
return of property;
(5)
restoration of original condition;
(6)
repair, reworking or replacement;
(7)
compensation for losses;
(8)
payment of breach of contract damages;
(9)
elimination of ill effects and rehabilitation of
reputation; and
(10)
extension of apology.
The
above methods of bearing civil liability may be applied exclusively or
concurrently.
When
hearing civil cases, a people's court, in addition to applying the above
stipulations, may serve admonitions, order the offender to sign a pledge of
repentance, and confiscate the property used in carrying out illegal activities
and the illegal income obtained therefrom. It may also impose fines or
detentions as stipulated by law.
Chapter
VII Limitation
of Action
Article 135
Except as otherwise stipulated by law, the limitation of action regarding
applications to a people's court for protection of civil rights shall be two
years.
Article 136 The
limitation of action shall be one year on cases concerning the following:
(1)
claims for compensation for bodily injuries;
(2)
sales of substandard goods without proper notice to
that effect;
(3)
delays in paying rent or refusal to pay rent; or
(4)
loss of or damage to property left in the care of
another person.
Article 137 A
limitation of action shall begin when the entitled person knows or should know
that his rights have been infringed upon. However, the people's court shall not
protect his rights if 20 years have passed since the infringement. Under
special circumstances, the people's court may extend the limitation of action.
Article
138 If
a party chooses to fulfil obligations voluntarily
after the limitation of action has expired, he shall not be subject to the
limitation.
Article 139 A limitation
of action shall be suspended during the last six months of the limitation if
the plaintiff cannot exercise his right of claim because of force majeure or
other obstacles. The limitation shall resume on the day when the grounds for
the suspension are eliminated.
Article 140 A
limitation of action shall be discontinued if suit is brought or if one party
makes a claim for or agrees to fulfilment of
obligations. A new limitation shall be counted from the time of the
discontinuance.
Article 141 If
the law has other stipulations concerning limitation of action, those
stipulations shall apply.
Chapter
VIII Application of Law in Civil Relations with Foreigners
Article 142 The
application of law in civil relations with foreigners shall be determined by the
provisions in this chapter.
If
any international treaty concluded or acceded to by the People's Republic of
China contains provisions differing from those in the civil laws of the
People's Republic of China, the provisions of the international treaty shall
apply, unless the provisions are ones on which the People's Republic of China
has announced reservations.
International
practice may be applied on matters for which neither the law of the People's
Republic of China nor any international treaty concluded or acceded to by the
People's Republic of China has any provisions.
Article 143 If a
citizen of the People's Republic of China settles in a foreign country, the law
of that country may be applicable as regards his capacity for civil conduct.
Article 144 The
ownership of immovable property shall be bound by the law of the place where it
is situated.
Article 145 The
parties to a contract involving foreign interests may choose the law applicable
to settlement of their contractual disputes, except as otherwise stipulated by
law.
If
the parties to a contract involving foreign interests have not made a choice,
the law of the country to which the contract is most closely connected shall be
applied.
Article 146 The
law of the place where an infringing act is committed shall apply in handling
compensation claims for any damage caused by the act. If both parties are
citizens of the same country or have established domicile in another country,
the law of their own country or the country of domicile may be applied.
An
act committed outside the People's Republic of China shall not be treated as an
infringing act if under the law of the People's Republic of China it is not
considered an infringing act.
Article 147 The
marriage of a citizen of the People's Republic of China to a foreigner shall be
bound by the law of the place where they get married, while a divorce shall be
bound by the law of the place where a court accepts the case.
Article 148
Maintenance of a spouse after divorce shall be bound by the law of the country
to which the spouse is most closely connected.
Article 149 In
the statutory succession of an estate, movable property shall be bound by the
law of the decedent's last place of residence, and immovable property shall be
bound by the law of the place where the property is situated.
Article 150 The
application of foreign laws or international practice in accordance with the
provisions of this chapter shall not violate the public interest of the
People's Republic of China.
Chapter
IX Supplementary Provisions
Article 151 The
people's congresses of the national autonomous areas may formulate separate
adaptive or supplementary regulations or provisions in accordance with the
principles of this Law and in the light of the characteristics of the local
nationalities. Those formulated by the people's congresses of autonomous
regions shall be submitted in accordance with the law to the Standing Committee
of the National People's Congress for approval or for the record. Those
formulated by the people's congresses of autonomous prefectures or autonomous
counties shall be submitted to the standing committee of the people's congress
in the relevant province or autonomous region for approval.
Article 152 If an
enterprise owned by the whole people has been established with the approval of
the competent authority of a province, autonomous region or centrally
administered municipality or at a higher level and it has already been
registered with the administrative agency for industry and commerce, before
this Law comes into force, it shall automatically qualify as a legal person
without having to re-register as such.
Article 153 For
the purpose of this Law, "force majeure" means unforeseeable,
unavoidable and insurmountable objective conditions.
Article 154 Time periods
referred to in the Civil Law shall be calculated by the Gregorian calendar in
years, months, days and hours.
When
a time period is prescribed in hours, calculation of the period shall begin on
the prescribed hour. When a time period is prescribed in days, months and
years, the day on which the period begins shall not be counted as within the
period; calculation shall begin on the next day.
If
the last day of a time period falls on a Sunday or an official holiday, the day
after the holiday shall be taken as the last day.
The
last day shall end at 24:00 hours. If business hours are applicable, the last
day shall end at closing time.
Article 155 In
this Law, the terms "not less than," "not more than"
"within" and "expires" shall include the given figure; the
terms "under" and "beyond" shall not include the given
figure.
Article 156 This
Law shall come into force on January 1, 1987.